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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Adams v Kevin Connolly [2010] NIIT 07399_09IT (27 August 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/07399_09IT.html
Cite as: [2010] NIIT 7399_9IT, [2010] NIIT 07399_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 7339/09
CLAIMANT: Ian Robert Adams
RESPONDENT: Kevin Connolly
DECISION
The unanimous decision of the tribunal is that the claimant was automatically unfairly dismissed but is not entitled to a compensatory award.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr A Henry
Mr D I Atcheson
Appearances:
The claimant was represented by Mr D Warke.
The respondent was represented by Mr Caher, Solicitor of Campbell and Caher Solicitors.
The Claim
1. The claimant’s claim of Unfair Dismissal is crystallised
in the record of the Case Management Discussion held on 3 June 2010, where the
Chairman records as follows:-
“10. I note that, in this case, the
main issues are as follows:-
(1) The claimant does not accept that there was a genuine redundancy in this case. (The claimant says he has no idea what was the true reason for the dismissal).
(2) The claimant says that, in any event, the employer stepped outside the range of reasonable responses in selecting the claimant (instead of another member of staff) for redundancy.
(3) The claimant asserts that the statutory procedure (the DDP) was not followed. The claimant also asserts that (even if the DDP was followed), in any event, the dismissal was procedurally unfair….
(4) ….. In particular, the claimant asserts that the dismissal took place without any prior consultation with the claimant”.
The Issues
2. The issue before the tribunal was as follows:-
Was the claimant unfairly dismissed?
In the course of the hearing, the respondent’s representative conceded that the claimant was automatically unfairly dismissed by virtue of Article 130(A) of the Employment Rights (Northern Ireland) 1996 (“The Order”). Furthermore, the respondent conceded that the principles in the case of Polkey v AE Dayton Services Limited (1987) IRLR 503 HL, (“Polkey”) could not render such a
dismissal fair.
Sources of Evidence
3. The tribunal heard evidence from the claimant Mr Adams, together with
Mr Connolly, the respondent, and Mr Moag on behalf of the respondent. The tribunal was also referred to documentation during the hearing.
Findings of Fact
4. Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The respondent had operated a business of painting and decorating for 24 years. The tribunal found the respondent to be a straightforward and credible witness who had been ignorant of the fact that an employee ought to receive a written notice of termination of employment in a redundancy situation. Furthermore, it was acknowledged by the respondent that he did not have any written procedures relating to redundancy or dismissal and he was ignorant of the statutory dispute resolution procedures pertaining to dismissal as set out in Article 15 and Schedule 1 to the Employment (Northern Ireland) Order 2003 (“The 2003 Order”).
(ii) The claimant worked for the respondent from 2001. Due to the uncertainty of available work, the respondent made two employees redundant in 2008. The claimant had been a very good worker and had a good relationship with the respondent. The tribunal accepts the respondent’s evidence that when work was short or unavailable, he had spoken to his employees about the situation on an ongoing basis. The tribunal is satisfied that in 2008 the respondent had spoken to the claimant about the shortage of work and the need to put his employees on notice of possible redundancies. However, shortly after this conversation work began to pick up and further redundancies were unnecessary. A similar conversation ensued with the claimant in or about February 2009 but further work emerged thereby preventing redundancies taking place. However, in August 2009, the claimant was told that he was being put on eight weeks’ notice of redundancy due to the shortage of work, in the hope, however, that further work would become available in the meantime. The respondent had a contract to perform work at Donaghadee Primary School for a period of three weeks ending on 6 October 2009 and in the course of doing so employed an additional employee, Mr Munn, to facilitate the completion of this job. However, on 6 October 2009 the respondent told his five employees, including the claimant, that unless there was further work available by Friday 9 October 2009 they would all be paid for the rest of the week and made redundant on 9 October. The claimant and the respondent agreed that 9 October 2009 was the effective date of termination of the claimant’s employment.
(iii) The respondent visited the claimant’s home on Friday 9 October 2009 and handed his wages and redundancy money to his wife, telling her that her husband could get in touch with him if there was anything he wanted to know. Upon returning from the claimant’s premises, the respondent learned that there was work available on the following Monday with the SHAC Housing Association. At that point he decided to retain his son Eamon Connolly who was his longest serving employee, and was entitled to 17 weeks’ notice. Eamon Connolly, unlike the claimant, was not skilled in papering work but could paint and drive. The largest part of the respondent’s work was painting work. Although as skilled as the claimant in painting work, the respondent conceded that his son Eamon was not as quick at painting as the claimant.
(iv) It appears that during the month of November 2009 the respondent together with his sons Martin and Eamon, and a plasterer, performed some work at Knockmore School in Lisburn. Furthermore, the respondent and his son Eamon had been working at premises on the Newtownards Road in Belfast in November. However, at the end of November 2009 the respondent had one employee, Eamon Connolly. He employed Mr Moag for a period of five days in December 2009 and his son Martin Connolly, was employed on one, two or three days per week, depending on weather conditions, during December 2009. At the beginning of 2010 the respondent had two employees, Eamon Connolly and Martin Connolly, and when work on mobile units picked up in February 2010, Mr Moag was employed on a part-time basis in addition to Eamon Connolly and Martin Connolly. At this time the respondent had also been advertising for employees in the Training and Job Agency in Lisburn for a period of around three weeks. The tribunal accepts that the claimant, who had been pursuing other employment opportunities, could have availed of further work with the respondent in February 2009. The claimant conceded, under cross examination, that he could have applied for a job with the respondent and could probably have happily worked for him. At that time, the claimant had already sent a grievance in writing to the respondent on 3 November 2009 in relation to notice pay and had presented a claim to the tribunal on 4 November 2009 claiming unfair dismissal. The claimant applied for and received benefits from November 2009 for a period of six months, totalling £1,583.00. He also received a cheque for £2,242.80 in respect of notice pay under cover of a letter from the respondent’s Solicitors dated 23 December 2009. It was common case that his net pay was £280.00 per week when he worked for the respondent.
(v) The respondent was able to avail of more work during the spring/early summer of 2010 and Mr Moag became a full-time employee in June 2010. At that stage, apart from himself, the respondent had his two sons and
Mr Moag as employees.
The Law
5. (1) Article 174 of the Order provides as follows:-
“(1) For the purposes of this Order an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to - …
(b) The fact that the requirements of that business:-
i. for employees to carry out work of a particular kind; or
ii. for employees to carry out work of a particular kind in the place where the employee was employed by the employer.
have ceased or diminished or are expected to cease or diminish.”
(2) At paragraph 19 of his judgement in the Employment Appeal Tribunal case of Williams & Others v Compair Maxam Ltd [1982] IRLR 83 (‘Compair Maxam’) Mr Justice Browne-Wilkinson states as follows:-
“In law therefore the question we have to decide is whether a reasonable tribunal could have reached the conclusion that the dismissal of the applicants in this case lay within the range of conduct which a reasonable employer could have adopted. … there is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:-
1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an
agreement as to the criteria to be adopted has been agreed with the union, the
employer will seek to establish criteria for selection which so far as possible
do not depend solely upon the
opinion of the person making the selection but can be objectively checked
against such things as attendance record, efficiency at the job, experience, or
length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
The lay members stress that not all these factors are present in every case since circumstances may prevent one or more of them being given effect to. But the lay members would expect these principles to be departed from only where some good reason is shown to justify such departure. The basic approach is that, in the unfortunate circumstances that necessarily attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection has been made fairly and not on the basis of personal whim”.
Although a trade union was not involved in this case, the general principles outlined above provide useful guidance to an employer in a redundancy situation.
(3) The tribunal also obtained useful guidance from Judge Peter Clark’s judgement in the case of Langston v Cranfield University [1988] IRLR 172 at paragraph 33ff:-
“(4) Where an applicant complains of unfair dismissal by reason of redundancy we think that it is implicit in that claim, absent agreement to the contrary between the parties, that the unfairness incorporates unfair selection, lack of consultation and failure to seek alternative employment on the part of the employer.
(5) Because there is now no onus on either party to establish the reasonableness or unreasonableness of the dismissal under s.98(4) it is for the industrial tribunal to determine that question ‘neutrally’.
(6) In these circumstances we think it is incumbent on the industrial tribunal to consider each of the three questions mentioned in (4) above, in the same way that an industrial tribunal will consider the threefold Burchell test in an appropriate conduct case. It is desirable that at the outset of the hearing the live issues are identified by the industrial tribunal.
(7) Normally, an employer can be expected to lead some evidence as to the steps which he took to select the employee for redundancy, to consult him and/or his trade union and to seek alternative employment for him.
(8) We would normally expect the industrial tribunal to refer to these three issues on the facts of the particular case in explaining his reasons for concluding that the employer acted reasonably or unreasonably in dismissing the employee by reason of redundancy.
In setting out these propositions we are not seeking to replace the statutory test under s.98(4) but to ensure its practical application in redundancy cases”.
(4) The tribunal considered the guidance given
by Glidewell LJ in the case of
R v British Coal Corporation and Secretary of State for Trade and Industry,
ex p Price [1994] IRLR 72. At paragraph 24 of his judgement he
states:-
“It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodgson J in R -v- Gwent County Council ex parte Bryant, reported, as far as I know, only at [1988] Crown Office Digest p 19, when he said:-
“Fair consultation means:-
(a) consultation when the proposals are still at a formative stage;
(b) adequate information on which to respond;
(c) adequate time in which to respond;
(d) conscientious consideration by an authority of the response to consultation”.
(5) The tribunal also considered the relevant provisions in the Order relating to dismissal and automatically unfair dismissal under Article 130A. It also considered the requirements of the statutory procedures as set down in the 2003 Order pertaining to dismissals.
(6) Although an adjustment has to be considered in any award under Article 17 of the 2003 Order (“Article 17”), the principles in Polkey have to be considered in the context of reducing the claimant’s compensation by a percentage representing the chance that he would still have lost his job even if proper procedures have been followed.
(7) By virtue of Article 157 of the Order the amount of the compensatory award “shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.”
Submissions
6. (i) The respondent’s Solicitor submitted that there had been a genuine redundancy, that there was no work available at the effective date of termination of the claimant’s employment, and that if work became available the claimant would be contacted. He urged the tribunal to find that the claimant had not mitigated his loss as in February 2010 work was available with the respondent had he applied for a job. He also urged the tribunal to find that there had been no loss as there was no work available when the redundancy took place on 9 October 2009 and, in any event, there should be no uplift in any compensation awarded.
(ii) The claimant’s representative, in terms, urged the tribunal to find in the claimant’s favour in relation to the issues identified in paragraph 1 of this decision. He referred to the case of Robinson v Carrickfergus Borough Council [1983] IRLR 122 and to the Employment Appeal Tribunal case of E Ho v The University of Manchester (UKEAT/0509/08T) to substantiate his submissions. He also submitted that the respondent had failed to consider a layoff or short time work for the claimant.
Conclusions
7. The tribunal, having carefully considering the evidence together with the submissions and having applied the principles of law to the findings of fact, concludes as follows:-
(i) The provisions contained in Article 130A of the Order apply. The tribunal is satisfied, by virtue of Article 17, that the claim is one to which the statutory procedures apply, that the statutory procedure was not completed before the claim was presented to the tribunal and that the non-completion of the statutory procedure was wholly or mainly attributable to failure by the respondent to comply with a requirement of the procedure. By virtue of Article 17 (3) the tribunal “shall, subject to paragraph (4), increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50%.
(4) The duty under paragraph (2) or (3) to make a reduction or increase of 10% does not apply if there are exceptional circumstances which would make a reduction or increase of that percentage unjust or inequitable, in which case the tribunal may make no reduction or increase or a reduction or increase of such lesser percentage as it considers just and equitable in all the circumstances”.
(ii) In the Employment Appeal Tribunal case of Cex Limited v Mark Lewis (UKEAT/0013/07/DA), it was held that a tribunal was entitled to take into account the respondent’s ignorance of the law when considering uplifting an award of compensation under Article 17. The tribunal has a broad discretion to award what is just and equitable. However, in exercising this discretion, it is relevant to assess the culpability of an employer and in this regard there is a distinction between an ignorant employer and one who deliberately disregards the law.
(iii) Apart from the provisions contained in Article 130(A) of the Order the tribunal is satisfied, in any event, that the decision to dismiss the claimant did not, because of procedural requirements, fall within the band of reasonable responses which a reasonable employer might have adopted in the particular circumstances of this case and therefore the dismissal is also unfair on this basis. However, the tribunal is satisfied on the basis of Polkey that even if the procedural requirements had been followed by the respondent, the percentage chance of dismissal was more than 50% and the dismissal would therefore be fair.
(iv) In this case the claimant is not entitled to a basic award as he has received a redundancy payment.
(v) Even though the dismissal is automatically unfair under Article 130A of the Order a reduction in compensation under Polkey may still be appropriate. The tribunal, after calculation of the compensatory award, shall therefore proceed as follows to:-
(a) Deduct the payment in lieu of notice.
(b) Deduct a sum to reflect any failure by the claimant to take reasonable steps in mitigation,
(c) Deduct the percentage chance of dismissal under Polkey,
(d) Apply, as appropriate, a percentage increase in the award,
(e) Apply the Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996, if appropriate.
(vi) The tribunal is satisfied that in the circumstances which presented themselves to the respondent on 9 October 2009, the claimant would not have been retained by the respondent in preference to Eamon Connolly, and therefore the tribunal assesses the claimant’s percentage chance of dismissal under Polkey to be 100%. In light of this conclusion, the tribunal does not consider it necessary to address further issues relating to compensation or in relation to the Employment Protection (Recoupment of Job Seekers Allowance and Income Support) Regulations (Northern Ireland) 1996.
(vii) The tribunal therefore concludes that whilst the claimant was automatically unfairly dismissed, he is not entitled to a compensatory award.
Chairman:
Date and place of hearing: 2 August 2010, Belfast
Date decision recorded in register and issued to parties: